DE SILVA v. DE CROOS

056-SLLR-SLLR-2002-V-2-DE-SILVA-v.-DE-CROOS.pdf


CA
De Silva v. De Croos
409
DE SILVA
v.DE CROOS
COURT OF APPEALWEERASURIYA, J. ANDDISSANAYAKE, J.
CA NO. 723/90 (F)
DC NEGOMBO NO. 3399/LNOVEMBER 29, 2000
Revocation of a donation – Ingredients – Required standard of proof? Test ofbalance of probability in evaluating evidence – Gross ingratitude – Substitutionin the Court of Appeal – SC Rules of 1990, CA (Appellate Procedure) Rules of1990.
The original plaintiff sought the revocation of a donation effected by a deed ofgift; on the grounds of gross ingratitude and violation of conditions in the deedto wit preventing her from enjoying her life interest of the house and premises.The defendant-respondent denied the averments and prayed for the dismissal ofthe action. While the appeal was pending, the original plaintiff died and her nephew,the executor named in her purported Last Will had been substituted. In No. 952/T,the District Court however had dismissed the application for probate of thesubstituted plaintiff on the ground that there was no legal validity of the last will.
A preliminary objection was taken by the defendant-respondent that there wasno proper substitution.
Held:
The original plaintiff was a divorcee, and she had died issueless. Boththe substituted plaintiff and the defendant-respondent are heirs of intestacyof the original plaintiff; although the Last Will has not been proved, hestill remains an heir.
In the Court of Appeal on the death of a party substitution is under therules provided for in the SC Rules 1990 read with CA (Appellate Rules)of 1990.
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Therefore, there is no legal impediment for the nephew who is also anheir of the original plaintiff to continue this case in the capacity of thesubstituted plaintiff.
Preliminary objections stand overruled.
It was contended that the trial Judge misdirected himself on the standard of proof,by applying a too strict a standard of proof and not applying the rules of balanceof probability.
HELD further –
It appears that the trial Judge applied too strict a standard of proof. Hehas not applied correctly the test of balance of probabilities in evaluatingthe evidence.
On a careful examination of the facts it is clear that the original plaintiffhas established gross ingratitude on the part of the defendant.
Ingratitude which a Court does not regard as trifling would give rise toa Court to order a revocation of a gift.
'Slighter causes of ingratitude are by no means enough to bring abouta revocation, although both the law and right reason entirely condemn everyblot and blemish of ingratitude, albeit somewhat slight, nevertheless theyhave not intended that for that reason it should be forthwith penalised byrevocation of the gift.'
The ways in which a donee may show that he is ungrateful being legion,it is not possible to state what is 'slight ingratitude' and what is not, exceptin regard to the facts of a given case.
APPEAL from the judgment of the District Court of Negombo.
Cases referred to :
Manuelpillai v. Nallamma – 52 NLR 221.
Thilliapalam v. Krishnaswamy – 59 NLR 265.
De Silva and Others v. Seneviratne and Another – 1981 2 Sri LR 7.
CA
De Silva v. De Croos (Dissanayake, J.)
411
P. A. D. Samarasekera, PC with R. Y. D. Jayasekara for substituted plaintiff-appellant.
A. H. G. Ameen with R. R. Ossen for defendant-respondent.
Cur. adv. vult.
June 01, 2001DISSANAYAKE, J.
The original plaintiff by her plaint dated 28. 02. 1985 filed this actionseeking inter alia a revocation of a donation of 1/2 schare of the houseand premises described in the schedule to the plaint, effected by deedof gift bearing No. 946 attested by E. B. K. Soysa dated 29. 03. 1974,on the grounds of :
gross ingratitude
violation of conditions of the said deed, to wit, in preventingher from enjoying her life interest of the said house andpremises.
The defendant-respondent by her answer dated 21. 01. 1986 whilstdenying the averments in the plaint, prayed for dismissal of theplaintiff's action.
The case proceeded to trial on 9 issues and at the conclusionof the trial the learned District Judge by his judgment dated
05. 1990, dismissed the original plaintiff's action with costs.
It is from the aforesaid judgment that this appeal is preferred.
While this appeal was pending before this Court, the original plaintiffdied and her nephew who was the executor named in her purportedlast will has been substituted as the substituted plaintiff.
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10
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A preliminary objection was taken by Counsel for the defendant-respondent that there was no proper substitution and that therefore 20the appeal should abate.
On a perusal of the docket of this case it appears that this Courthas already made order on 8th January, 1996, to substitute AnesslyMichael Paul De Silva as the substituted plaintiff. According to thepetition and affidavit filed by the substituted-plaintiff he had beennamed as the executor of the purported last will of the original plaintiffwhich was the subject-matter of District Court, Negombo, caseNo. 952/T.
However, the learned District Judge of Negombo in caseNo. 952/T by his judgment dated 28. 06. 2000 has dismissed the 30application for probate of the substituted plaintiff on the groundthat there was no legal validity of the Last Will No. 2061 dated22. 11. 1983.
It was revealed in the evidence led in this case that the originalplaintiff was a divorcee and she had died issueless. Therefore, itappears that on her death the property shall devolve on her ascendantsand collaterals.
The substituted plaintiff is the brother's son of the original plaintiff.The defendant-respondent is her sister's daughter. Thus, both thesubstituted plaintiff and the defendant- respondent are heirs of intestacy 40of the original plaintiff. Although the last will in which the substitutedplaintiff was appointed executor has not been proved, he remains anheir of the original plaintiff and is capable of being substituted as thesubstituted plaintiff.
In this Court on the death of a party substitution of a party is madeunder the rules provided for in the Supreme Court Rules of 1990 readwith the Court of Appeal (Appellate Procedure) Rules of 1990.
CA
De Silva v. De Croos (Dissanayake, J.)
413
Therefore, it appears that there is no legal impediment for thenephew of the original plaintiff who is also an heir of the original plaintiffto continue this case in the capacity of the substiutted plaintiff. 50
For the aforesaid reasons the preliminary objection of the defendant-respondent is untenable and it stands dismissed.
Learned President's Counsel appearing for the plaintiff-appellantcontended that the learned District Judge misdirected himself on thestandard of proof in this case –
by applying a too strict a standard of proof and
by not applying the rules of balance of probabilities.
To examine the question of standard of proof in this case it isnecessary to examine the evidence led in this case.
The plaintiff-appellant by deed of gift bearing No. 946 of 6029. 03. 74 donated the house and premises described inthe schedule to the plaint in equal shares to her niece thedefendant-respondent and her nephew Peter Austin MichaelFonseka.
The original plaintiff obtained a District Court decree in DC,Negombo case No. 2224/L revoking her gift of the 1/2 sharedonated to the said Peter Austin Michael Fonseka on theground of gross ingratitude. The judgment of the DistrictCourt in that case had been affirmed in appeal by this Court,
in case No. CA 578/88 (F) decided on 18. 12. 1992.70
The original plaintiff was working as a Matron in the Departmentof Health and was attached to the General Hospital, Colombo.
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She was married for a few months and her marriage endedup in a divorce. She was living in a boarding house, inColombo.
Some household articles of the original plaintiff were givento the defendant-respondent for safe-keeping.
When the original-plaintiff went to the house of the defendant-respondent with Donald Rose to remove the household articles, 80she was abused in filth. She was called a "whore", a “bitch"etc . . . She was pushed by the defendant-respondent.
It was found that the defendant-respondent had returnedsome used articles in place of her new articles and notreturned some others.
The original-plaintiff made a complaint to the NegomboPolice on 14. 02. 83 (P3).
When the original-plaintiff went to see a relative by the nameof Sarath Patuwathawitana who was warded at the GeneralHospital, Colombo, she met the defendant-respondent there. 90On the original plaintiff requesting the return of her balancearticles, she was abused in filthy language.
A complaint was made at the Negombo Police station on25. 03. 1983 (P4).
After the judgment in case No. 2224/L was given in favourof the original plaintiff against the defendant-respondent'sbrother Peter Austin Michael Fonseka he left the house andpremises taking their mother too along with him.
CA
De Silva v. De Croos (Dissanayake, J.)
415
Subsequently, the defendant-appellant brought her backand left her in the house thereby preventing the original100plaintiff from enjoying her life interest in the property.
The position of the defendant-respondent was that all the householdarticles that were handed over for safe keeping were returned to theoriginal plaintiff in November or December, 1982, when she came toher house at Kiribathgoda with Donald Rosa. She denied that sheabused the original plaintiff or having pushed her.
The defendant-respondent led the evidence of the Colombo GeneralHospital authorities with reference to the employees attendance registerwhereby it was revealed that the defendant-respondent was on dutyat the hospital from 14. 02. 1983 to 25. 03. 1983, to establish that nothe alleged incident of abuse at Kiribathgoda on 14. 02. 1983 andthe subsequent incident of alleged abuse at the General Hospital wereimprobable.
However, since the defendant-respondent in her evidence hadadmitted to the original respondent coming to her house with DonaldRosa in November or December, 1982, to remove the goods, itappears that the contentious issue between the two parties is as tothe date of the said visit and as to what transpired there.
The evidence that the defendant-respondent was on duty at theGeneral Hospital on 25. 03. 1983 will not have any bearing on the 1202nd incident of abuse which was alleged to have occurred on25. 03. 1983 at the General Hospital, because as a dietician attachedto the General Hospital the defendant-respondent's presence in thewards and being found in the hospital premises and meeting theoriginal plaintiff in the hospital premises is not an improbability. Therefore,the fact that the defendant-respondent was on duty on 25. 03. 1983has no bearing on the 2nd incident of abuse.
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[2002] 2 Sri L.R.
The learned District Judge in his judgment had stated that theoriginal plaintiff had not stated in the complaint dated 25. 03.1983 (P4)the fact that she was pushed when she went to collect her household 130articles.
It is to be observed that the complaint dated 25. 05. 1983 (P4)was made with regard to the 2nd incident of abuse that happenedat the General Hospital. Therefore, it is obvious that she did notmention what happened at Kiribathgoda in her complaint made on25. 03. 1983 (P4).
However, the original plaintiff in her complaint made on 14. 02.1983 (P3) has stated that she was abused in filth by the defendant-respondent. Although she has not stated in the complaint dated14. 02. 1983 (P3) that she was pushed she has stated that when noshe wanted her articles back she was abused and harassed by thedefendant-respondent.
The learned District Judge has considered the contradiction withregard to the date on which the said 1st incident is said to haveoccurred as vital which is not very material in view of the admissionby the defendant-respondent that the original plaintiff visited herdefendant-respondent that the original plaintiff visited her house withDonald Rosa to remove the articles handed over for safe-keeping.
The learned District Judge has disbelieved the testimony of theoriginal plaintiff with regard to the incident of abuse and pushing of isothe original plaintiff solely because of witness Donald Rosa’s assertionto seeing the incident in the examination in chief and later under cross-examination stating that he did not see it.
With regard to the 2nd incident of abuse of the original plaintiffat the General Hospital the learned District Judge did not believe the
CA
De Silva v. De Croos (Dissanayake, J.)
417
original plaintiff on the ground that'the no corroborative evidence wasforthcoming. The learned District Judge did not take into account thefact that the defendant-respondent was a dietician in the GeneralHospital and her admission in the evidence that their relative SarathPatuwathavithana was warded at the General Hospital, Colombo. 160
The learned District Judge has not considered the admission inevidence by the defendant-respondent that after her brother PeterAustin Paul Fonseka lost his case relating to his 1/2 share of thecorpus his leaving the house removing their mother too along withhim. The learned District Judge has failed to consider the admissionby the defendant-respondent in her evidence that their mother hada house at Base Line Road at Seeduwa where she used to live offand on, and the testimony of the original plaintiff that it was thedefendant-respondent who brought her back, after their relationshipbecame sour.m
Therefore, it appears that the learned District Judge applied toostrict a standard of proof. He has not applied correctly the test ofbalance of probabilities in evaluating the evidence.
It seems to me that there is sufficient material to establish thefollowing facts on a balance of probabilities :
That when the original plaintiff and Donald Rosa went toKiribathgoda to remove her articles she was abused in filthylanguage using the words ’whore1 and ’Bitch’, etc.
That the original plaintiff was pushed on that occasion by
the defendant-respondent.iso
That the original plaintiff was abused in filth for the 2nd timeby the defendant-respondent at the General Hospital.
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That the defendant-respondent's brother Peter Austin MichaelFonseka, removed their mother when she left the house afterhe lost case No. 2224/L relating to the other 1/2 share ofthe property.
That the defendant respondent brought her mother who leftwith Peter Austin Michael Fonseka, back into the premisesin suit, thereby preventing the original plaintiff enjoying herlife interest after her relationship with the original plaintiff190deteriorated, in violation of a condition that was attached
to the deed of gift.
Now, I shall consider the law relating to the rights of the donorto revoke a gift under our law. According to the judgment of Basnayake,
J. (as His Lordship then was) in the case of Manuelpillai v. Nallamma<,>at 224 the donee failing to fulfil the conditions annexed to the giftwas held to be a ground to revoke the deed of gift.
In the case of Thillaimpalam v. Krishnaswamy<2> at 267 Basnayake,
CJ., quoting Wickramanayake's translations of Perezius statement(Praelectiones Codicis Justinian!, Book VIII, Tit. LVI, Section 5) has 200stated thus: "the causes of ingratitude are five in number, namely:
If the donee outrageously insults the donor, or lays impius hands onhim or squanders his property, or plots against his life, or is unwillingto fulfil a part which was annexed to the gift."
In the same case of Thillaimpalam v. Krishnaswamy (supra)Basnayake, CJ. at page 269 has stated thus: It would appear fromwhat has been cited above that even Perezius acknowledges that thegeneral opinion of the Doctors is that a donation can be revoked forother causes besides the 5 causes of ingratitude specified by him;provided that they are graver than or as graver than or as those. 210But, Perezius himself prefers the view that a donation cannot be set
CA
De Silva v. De Croos (Dissanayake, J.)
419
aside except on any of the grounds specially mentioned. His reasonsfor his view are unconvincing and I prefer to follow the other viewwhich Perezius says is the general opinion of the doctors and whichis also the opinion of Voet, and Van Leeuwen . . .
"It would be unwise to lay down a hard and fast rule as to whatconduct on the part of a donee may be regarded as ingratitude forwhich a donor may ask for revocation of his gift. Voet's view is thatingratitude for which a donor may ask for revocation of his gift is thatingratitude for which a Court does not regard as trifling. He says "of 220course slighter causes of ingratitude are by no means enough to bringabout a revocation. Although both the laws and right reason entirelycondemn every blot and blemish of ingratitude, albeit somewhat slight,nevertheless, they have not intended that for that reason it shouldbe forthwith penalized by revocation of the gift. The ways in whicha donee may show that he is ungrateful being legion, it is not possibleto state what is "slight ingratitude", and what is not, except in regardto the facts of a given case".
Thus, it would appear ingratitude which a Court does not regardas trifling would give rise to a Court to order a revocation of a gift. 230
On a careful examination of the facts of this case, it is clear thatthe original plaintiff has established gross ingratitude on the part ofthe defendant-respondent, that would enable a Court to order therevocation of the gift.
Therefore, I am of the view that the learned District Judge hasnot brought to bear in his mind on the facts that constitute standardof proof. Furthermore, he has not objectively assessed the facts asto their probability keeping in mind the law relating to gross ingratitude.
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[2002] 2 Sri LR.
This Court is not unmindful of the principle that the finding of thetrial Judge is entitled to great weight and the Appellate Court will not240normally interfere with such findings, but however, where the findingsare based upon the trial Judge's evaluation of facts the Appellate Courtis then in as good a position as the trial Judge to evaluate such findingsand no sanctity attaches to such findings. Where it appears to anAppellate Court that on either of those grounds; the findings of factby a trial Judge should be reversed then the Appellate Court “oughtnot to shrink from that task”, (vide – De Silva and Others v. Seneviratneand Another).®
Therefore, I set aside the judgment of the learned District Judgedated 08. 05. 1990 and direct the District Judge to enter judgment250and decree for the plaintiff-appellant as prayed for in the plaint.
The appeal is allowed with costs.
WEERASURIYA, J. – I agree
Appeal allowed.